The details are still murky, but what the NSA appears to be doing is very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind. Maybe twice or three-times removed links to suspected terrorist phone numbers. Or anyone who makes more than 5% of their calls to Afghanistan. Or people who make a suspiciously large volume of calls on certain dates or from certain mosques. Stuff like that.
Then, if you happen to fit one of these profiles, your phone is tapped and an NSA analyst decides if you're really a terrorist suspect. This apparently happens tens of thousands of times a year and most are washed out. Perhaps a thousand or two thousand a year are still suspicious enough to pass on the FBI, and most of these wash out too. At the end of the year, five or ten are still of enough interest to justify getting a domestic wiretap warrant.
Is this useful? Maybe. But we're not listening in on al-Qaeda's phone calls to America. We're tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn't require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. This raises lots of obvious concerns:
As Drum argues, the algorithms must be based on hunches and guesses. If we had a large amount of data on the behavior of terrorists, we could use computers to find patterns. As it is, the patterns start as a human guess. The fact that there is a huge amount of number crunching between the guess and the referral to the FBI does not make the conclusion more reliable than the original guess -- that is no good at all.
Now there is a possible good final outcome. My guess (no good at all) is that the NSA data mining has not been useful. The Bush administration can hide that fact from the public and congress, but they won't be able to hide if from possible President Obama.
I hope that, roughly a year from now, President Obama says "I conclude that warrantless wiretapping and enchanced interrogation are not only crimes but also mistakes. So I will ask Congress to re-revise FISA and the MCA etc." Now the power based on having more information will be in his hand (of course the NSA and the CIA will leak hints that he is wrong, but he will be able to say that the leaks are both criminal and misleading). That would be OK.
That is, I hope (or wish I hoped) that Obama has just decided that he is better able to fight this as President than as a senator.
On the other hand, I admit that it is more likely that he will decide that it is OK as he will just prevent abuse with executive orders and not fight in congress to reduce his own power. Thus the laws and precedents will remain as an invitation to abuse by Obama or his successors.
Not to mention that while Obama assumes that he will be President soon, Clinton assumed that she would be the nominee. To increase his chances of winning a tiny amount, he is doing things that will be very damaging if McCain wins.